David Rivkin and Lee Casey wrote an op-ed in the Washington Post in August of last year (David Rivkin is to conservatives as Jonathan Turley is to progressives.) These two lawyers try to answer the question, can Congress require every American to buy health insurance? They argue that the commerce clause does not affect healthcare and that Congress cannot mandate coverage. “The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the ‘production, distribution or consumption of commodities,’ but for no other reason than that people without health insurance exist.”

I’m not a law professor. I will never profess to be one. Stephen Schwinn is an associate professor of law at the John Marshall Law School. He runs the blog constitutional law prof blog. Here’s what he had to say —

After reflecting on the case law, I agree with the Adler/Massey/Balkin formulation for several reasons. First, I think that Professor Adler correctly asserts that in Gonzales v. Raich, the Court made clear that the Commerce Power extends to the power to regulate markets. Justice Stevens stated, “[W]hen a general regulatory scheme bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” The opinion goes on to say, “[W]e have no difficulty concluding that Congress had a rational basis for beleiving that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the [Controlled Substances Act]. These words seem to leave little to interpretation. In fact, in dissent, Justice O’Connor interpreted the majority’s opinion in the same manner. Thus, the regulatory scheme argument seems logical and sound.

Second, Rivkin and Casey may be overselling the non-economic quality of the decision not to purchase health care. While Rivkin and Casey are clearly well-versed in the relevant cases, it appears that some critical portions of those cases are omitted from their reasoning. For instance, Lopez and Morrison do stand for the proposition that the Congress should use its Commerce Clause power primarily to regulate economic activity. However, the authors mention, but seem to discount, the breadth of the definition of “economic” provided in the Gonzales case. In her dissent, Justice O’Connor stated, “The Court’s definition of economic activity is breathtaking. It defines as economic any activity involving the production, distrubution, and consumption of commodities . . . [T]he Court’s definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal reach.” Thus, after Gonzales, we still have a Commerce Clause jurisprudence that favors economic activity. However, as pointed out by Justice O’Connor’s dissent, the definition of economic is now so broad that the number of activities coming within its ambit has been increased, rather than decreased. Since health insurance is certainly a commodity, it stands to reason under our new, broader difinition, that Congress can regulate the “production, distribution, and consumption” of said commodity, even where a person may not wish to become a consumer. In other words, if Congress can regulate the purchasing of goods, it should be able to regulate their non-purchase, as Professor Balkin suggests. To suggest otherwise would not only invite a sort of tortured logic, but would overlook the spirit of cases such as Wickard, a spirit which was soundly reaffirmed by the Gonzales majority. Thus, I believe an argument can be made that even the non-purchase is an economic act able to be regulated by Congress.

Finally, it is worth noting that the Court’s decision in Morrison is broader that Rivkin and Casey’s analysis admits. Though the Morrison court was careful to state that gender violence was not an economic activity, Chief Justice Rehnquist went on to state, “. . . we need not adopt a categorical rule against aggregating the affects of any non-economic activity . . .” Here, the Court left an opening, realizing that a fact pattern could occur which might allow for the aggregation of non-economic activity. Assuming (contrary to my prior paragraph) that a refusal to purchase health care is a non-economic decision and the regulatory argument does not work, the game might not be over. An individual person’s decision not to purchase healthcare might not be regulable on its own. But in the aggregate, that person’s choice would obviously affect the interstate healthcare market. Due to the strong, strong connection between the refusal to purchase health care and interstate commerce (something sorely lacking in both Lopez and Morrison), if there were a case for arguing for non-economic aggregation, this would seem to be a perfect test-case.

For those who are still not convinced Jack Balkin debated David Rivkin and Lee Casey. The two-part debate can be found here.

The Tenthers believe that states should have to the right to tell the federal government to stick healthcare where the sun don’t shine. Again from Professor Schwinn –

If Congress has authority to enact an individual health insurance mandate, these state measure run up against the Supremacy Clause: They are almost surely unconstitutional, as conflicting directly with the federal requirement.

But advocates of the measures nevertheless claim that they interfere with “state sovereignty.” As one advocate in the last line of this morning’s story said, “No Supreme Court has ever been more sympathetic to state sovereignty than the current Court.”

Whether that’s right or not, it almost surely would not affect the Supremacy Clause analysis (unless the Court were willing to undo well settled Supremacy Clause principles). So what does it mean?

One possible answer: A mandate’s interference with “state sovereignty” means that Congress lacks authority under the Commerce Clause and Necessary and Proper Clause to enact a mandate in the first place. This interpretation might draw support from U.S. v. Lopez (holding that Congress lacked authority under the Commerce Clause to enact the Gun Free School Zone Act) and U.S. v. Morrison (holding that Congress lacked authority under the Commerce Clause to enact the civil damages provision of the Violence Against Women Act). The majority in both of those cases referred to the slippery slope that might result if Congress had authority to enact those laws: “Congress could regulate any activity that it found was related to the economic productivity of individual citizens . . . . Under the[se] theories . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.” But neither case turned on this slippery slope, and the interference with traditionally state regulated activities alone is surely not enough to render congressional action unconstitutional. SeeGonzales v. Raich (upholding a federal drug possession law).

I must add the 1st and 5th amendment challenges that conservatives have mentioned from time to time. Professor Mark Hall has addressed these and other challenges in a 26 page brief. Here’s what Professor Hall has to say about the 1st and 5th amendment challenges –

Challenges under the First and Fifth Amendments relating to individual rights may arise, but are unlikely to succeed. The federal government should include an exemption on religious grounds to a health insurance mandate as an added measure of protection from legal challenges based on religious freedom. In the alternative, the federal government can simply exempt a federal insurance mandate from existing federal legislation protecting religious freedom.

Finally, it really doesn’t matter what law I site. To those who want to kill healthcare at any costs, I’m sure they will never be convinced by any rational argument. They simply want to hear that they are right. Unfortunately, in this case, it doesn’t look they are even close to being right.

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Errington C. Thompson, MD

Dr. Thompson is a surgeon, scholar, full-time sports fan and part-time political activist. He is active in a number of community projects and initiatives. Through medicine, he strives to improve the physical health of all he treats.

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